Jesus, take the wheel. SCOTUS recently handed down a decision — reenforcing an Obama administration policy — that is so dumb it rivals John Roberts’s “what is this ‘email’ you speak of?” moment of shame.

While the relevant statute defines “material support” to include a long list of items that are clearly connected to the violent activities of terrorists, it also includes more ambiguous terms such as “any…service,…training, expert advice or assistance.”

Basically, this decision means peacekeepers like Jimmy Carter could be accused of offering “material support,” meaning any service, which could include counsel or mediation, to groups like the democratically elected Hamas.

Also, notice the term “terrorist group” is a completely arbitrary label. Hamas, though they came to power in a democratic election, is a terrorist group, while Israel, which receives billions of dollars in aid from the US, and uses illegal weapons like white phosphorous against a civilian population, and continues to exercise collective punishment unabated by western bystanders, is an “important ally.”

Barbara Herbert, a course director at Tufts University School of Medicine, made a short, but compelling plea in today’s New York Times. Herbert argued that the United States government should convene a truth and reconciliation commission, using the one in South Africa as a model, to investigate into possible crimes committed by the Bush administration.

Such a commission would allow a nation to (a) find the truth of what happened from multiple perspectives, (b) develop an understanding of how it happened and (c) heal.

A commission isn’t some kind of partisan booby trap thrown together in a frenzied quest for retribution as Harry Reid suggested last week. The formation of a nonpartisan commission also wouldn’t act as a nefarious tool to dismantle the foundation of The American Way (corrupting the sweet “mysteries” of life,) as Bush apologists like Peggy Noonan claim.

A truth commission would use the law as a compass, and its only goal would be to restore order in America. As Herbert wrote, “We need a chance for secular redemption and healing.”

On Tuesday, Jeremy Scahill reported that Rep. John Conyers, chair of the House Judiciary Committee, and Rep. Jerrold Nadler wrote to Attorney General Eric Holder officially requesting the appointment of an independent Special Prosecutor to “to investigate and, where appropriate, prosecute torture committed against detainees during the Bush administration.” In order to restore credibility to the Justice Department, Holder must adhere to the rule of law, and not partisan demands. He must investigate into possible crimes committed under the Bush administration.

The law is not a fringe issue. Progressives may be the ones demanding an investigative commission, but the issue at stake here is the law itself. That’s not a partisan issue. The law should be sacred to all Americans: Republicans and Democrats. And if Democrats are proven to have been complicit in torture, then they too must be punished according to the law.

Otherwise, Americans will learn only one lesson: the law does not apply to our leaders. What a terrible lesson to teach young Americans.

Amnesty International released a report Nov. 5 stating that a five-and-a-half-month ceasefire between Israel and Hamas “has brought enormous improvements in the quality of life in Sderot and other Israeli villages near Gaza.” However, it warned that a spate of Israeli and Palestinian attacks and counter-attacks in the previous 24 hours could “once again put the civilian populations of Gaza and southern Israel in the line of fire.”

Seven weeks later, Israel launched a massive military offensive into Gaza that shocked much of the world while gaining widespread support inside the Jewish state.

The Gaza offensive took 13 Israeli lives, including three civilians. Meanwhile more than 1,300 Palestinian lives were lost, more than half of which were civilians, including at least 400 children. At least 5,000 were injured. The price tag for the reconstruction of 21,000 homes, schools, hospitals, mosques and other infrastructure destroyed is estimated at more than $2 billion. The conflict destroyed half of Gaza’s agricultural industry, which provided a quarter of its food.

Gaza is one of the most crowded places on earth; it holds 1.5 million people, half of whom are children under 15. The majority of Gazans are the descendants of Palestinians who were forced to flee during the founding of Israel in 1948. Eighty percent of Gazans subsist on less than $2 a day and depend on the United Nations for basic survival. Israel has imposed a 19-month-long blockade, stopping food, fuel and medical supplies from reaching Gaza despite U.N. pleas that the restrictions be lifted.

Israel stands accused of firing on and killing civilians waving white flags, those it ordered to flee their homes and on aid workers. Israel has also been accused of refusing to let the injured get medical care by impeding and firing on ambulances. A coalition of nine Israeli human rights groups called for an investigation into whether Israel committed war crimes, protesting the “wanton use of lethal force” against Palestinian civilians. The U.N.’s special rapporteur to Palestine said Israel could be in violation of the U.N. Charter, the Geneva Conventions, international law and international humanitarian law. The Israeli explanation for high civilian casualties is that Hamas fighters concealed themselves within the civilian population.

Amnesty International accused Israel of using white phosphorus “in densely populated residential neighborhoods, [which] is inherently indiscriminate,” adding, “Its repeated use in this manner … is a war crime.” Israel has also been accused of using cluster bombs in densely populated areas, as well as using experimental weapons that are illegal under international law, including dense inert metal explosives (DIME) and GPS-guided mortars. A former U.S. Department of Defense official, now with Human Rights Watch, stated, “Experimenting has a different meaning for Americans. We think animal experimenting, but [its use was] indeed a field test.” Israel has dismissed all accusations of using illegal weapons and promised to protect its soldiers from prosecution.

It is difficult to say how many Israeli soldiers and reservists refused to take part in the fighting as the Israeli military was sending military resisters quietly home rather than jailing them and risking puncturing an aura of shared national purpose. One military resister who went public with his opposition was Yitzchak Ben Mocha, who refused to fight in Gaza because, “It’s not a war of defense. … You can’t separate the war in Gaza from the fact that the Palestinian nation is under occupation for more than 40 years.”

A DIFFERENT PATH FORWARD

According to the Israeli group Peace Now, Israel has escalated settlement expansion by 57 percent over the past year. The scope of the Israeli government’s complicity came into focus Jan. 30. The Israeli newspaper Haaretz revealed that a secret database developed by the Israeli military confirms that many settlements are built on private Palestinian land and considered illegal under Israeli law. According to Haaretz, “in the vast majority of the settlements — about 75 percent — construction, sometimes on a large scale, has been carried out without the appropriate permits or contrary to the permits that were issued. The database also shows that, in more than 30 settlements, extensive construction of buildings and infrastructure (roads, schools, synagogues, yeshivas and even police stations) has been carried out on private lands belonging to Palestinian West Bank residents.”

It has been reported that President Barack Obama may start indirect low-level talks with Hamas, similar to those that the Carter administration held with the Palestine Liberation Organization (PLO) in the late 1970s. In 1982, Israel responded to the PLO’s willingness to negotiate by invading Lebanon, where the PLO was based, in a war that killed as many as 25,000 people. Twenty-seven years later the PLO’s Fatah party has been reduced to the role of collaborating in the Israeli occupation of the West Bank, and in spite of 16 years of negotiations it has been unable to stop Israeli expansion onto Palestinian lands.

It has been argued that the objective of Israel’s assault on Gaza was to knock out Hamas because it opposes the Israeli annexation of the West Bank and Jerusalem. According to a leading Israeli expert on the conflict Avi Shlaim, the “definition of terror is the use of violence against civilians for political purposes.” So while Hamas is a terrorist organization, “by the same token, Israel is practicing state terror, because it is using violence on a massive scale against Palestinian civilians for political purposes.”

An internationally-backed peace agreement has been on the table for more than 30 years: the creation of a Palestinian state in Jerusalem, Gaza and the West Bank. With Hamas now indicating it is willing to negotiate along these lines, the main obstacle to peace remains the U.S.-backed Israeli occupation, which only the U.S. public has the power to end.

To read more coverage on the Arab-Israeli conflict and related activism, click here.

Note from Allison: This is made all the more perverse by the fact that the US is set to give $900 million in aid to Gaza, while also giving $30+billion in aid to Israel. We’re giving aid to one side in order to rebuild the shit that gone blown up by the other side, who we’re arming. And no one sees anything devious or hypocritical about any of this?

Detailed evidence has emerged of Israel‘s extensive use of US-made weaponry during its war in Gaza last month, including white phosphorus artillery shells, 500lb bombs and Hellfire missiles.

In a report released today, Amnesty International detailed the weapons used and called for an immediate arms embargo on Israel and all Palestinian armed groups. It called on the Obama administration to suspend military aid to Israel.

The human rights group said that those arming both sides in the conflict “will have been well aware of a pattern of repeated misuse of weapons by both parties and must therefore take responsibility for the violations perpetrated”.

The US has long been the largest arms supplier to Israel; under a current 10-year agreement negotiated by the Bush administration the US will provide $30bn (£21bn) in military aid to Israel.

“As the major supplier of weapons to Israel, the USA has a particular obligation to stop any supply that contributes to gross violations of the laws of war and of human rights,” said Malcolm Smart, Amnesty’s Middle East and North Africa programme director. “To a large extent, Israel’s military offensive in Gaza was carried out with weapons, munitions and military equipment supplied by the USA and paid for with US taxpayers’ money.”

For their part, Palestinian militants in Gaza were arming themselves with “unsophisticated weapons” including rockets made in Russia, Iran and China and bought from “clandestine sources”, it said. About 1,300 Palestinians were killed and more than 4,000 injured during the three-week conflict. On the Israeli side 13 were killed, including three civilians. Amnesty said Israel’s armed forces carried out “direct attacks on civilians and civilian objects in Gaza, and attacks which were disproportionate or indiscriminate”. The Israeli military declined to comment yesterday.

Palestinian militants also fired “indiscriminate rockets” at civilians, Amnesty said. It called for an independent investigation into violations of international humanitarian law by both sides.

Amnesty researchers in Gaza found several weapon fragments after the fighting. One came from a 500lb (227kg) Mark-82 fin guided bomb, which had markings indicating parts were made by the US company Raytheon. They also found fragments of US-made white phosphorus artillery shells, marked M825 A1.

On 15 January, several white phosphorus shells fired by the Israeli military hit the headquarters of the UN Relief and Works Agency in Gaza City, destroying medicine, food and aid. One fragment found at the scene had markings indicating it was made by the Pine Bluff Arsenal, based in Arkansas, in October 1991.

The human rights group said the Israeli military had used white phosphorus in densely populated civilian areas, which it said was an indiscriminate form of attack and a war crime. Its researchers found white phosphorus still burning in residential areas days after the ceasefire.

At the scene of an Israeli attack that killed three Palestinian paramedics and a boy in Gaza City on 4 January, Amnesty found fragments of an AGM114 Hellfire missile, made by Hellfire Systems of Orlando, a joint venture of Lockheed Martin and Boeing. The missile is often fired from Apache helicopters.

Amnesty said it also found evidence of a new type of missile, apparently fired from unmanned drones, which exploded into many pieces of shrapnel that were “tiny sharp-edged metal cubes, each between 2 and 4mm square in size”.

“They appear designed to cause maximum injury,” Amnesty said. Many civilians were killed by this weapon, including several children, it said.

Rockets fired by Palestinian militants were either 122mm Grad missiles or short-range Qassam rockets, a locally made, improvised artillery weapon. Warheads were either smuggled in or made from fertiliser.

The arsenal of weapons was on a “very small scale compared to Israel”, it said, adding that the scale of rocket arsenal deployed by Hizbullah in the 2006 Lebanese war was “beyond the reach of Palestinian militant groups”.

Palestinians Militants fired rockets into southern Israel including 122mm Grad rockets of either Russian, Chinese or Iranian manufacture, and smaller, improvised Qassam rockets often made inside Gaza and usually holding 5kg of explosives and shrapnel.

WASHINGTON — Two days after his re-election in 1864, with Union victory in the Civil War assured, Abraham Lincoln stood at a White House window to address a boisterous crowd of supporters. He spoke of the lessons of the nation’s calamitous recent history.

“In any future great national trial, compared with the men of this, we shall have as weak and as strong; as silly and as wise; as bad and as good,” Lincoln said. “Let us, therefore, study the incidents of this as philosophy to learn wisdom from, and none of them as wrongs to be revenged.”

Today there are new calls for such study, not universal but certainly loud enough, directed this time at the Bush administration’s campaign against terrorism. Interrogation techniques that the United States had long condemned as torture, secret prisons beyond the reach of American law and eavesdropping on American soil without court warrants are at the top of a lot of lists.

But as Lincoln knew, one man’s wisdom is another’s vengeance. Repeatedly in American history, and in “truth commissions” in some two dozen countries from Argentina to Zimbabwe since the 1980s, it has turned out to be a tricky business to turn the ferocious politics of recent events into the dispassionate stuff of justice and the rule of law.

A USA Today/Gallup poll this month found that 62 percent of Americans favor either a criminal investigation or an independent panel to look into allegations of torture. Still, many people, primarily Republicans, insist the Bush policies were vital to protect the country, and the Obama administration is treading gingerly. When Senator Patrick J. Leahy of Vermont, the Democratic chairman of the Judiciary Committee, proposed a commission to investigate torture and eavesdropping, President Obama didn’t embrace the idea.

Already grappling with two wars and an economic meltdown, Mr. Obama said he was “more interested in looking forward than I am in looking backwards.” But the door was ajar; he also declared that “nobody is above the law.”

Mr. Leahy is undeterred. In an interview, he laughed and described the president’s remarks as “an enthusiastic endorsement.” He said he would work to build support for the idea in Congress.

As a senator under seven presidents, Mr. Leahy said, he has learned that the temptation to abuse powers in a crisis is bipartisan, and the commission’s review should include the role of Democrats in Congress in approving the Bush policies. The work should be done in one year, he added, to avert accusations that it was being dragged out for political gain.

Mr. Obama’s most enthusiastic supporters remain passionate about “looking backwards,” arguing that the Bush policies darkened the United States’ reputation, to Al Qaeda’s benefit. They include Representative John Conyers of Michigan, the House Judiciary chairman, who has sponsored a bill to set up an investigative panel.

Many Republicans, however, say the lofty appeals to justice and history mask an unseemly and dangerous drive to pillory the Bush administration and hamstring the intelligence agencies.

That was precisely the view of an aide in Gerald Ford’s White House named Dick Cheney when a Senate committee led by Frank Church of Idaho looked into intelligence abuses in the mid-1970s. A quarter-century later, as vice president, Mr. Cheney would effectively wreak vengeance on that committee’s legacy, encouraging the National Security Agency to bypass the warrant requirement the committee had proposed and unleashing the Central Intelligence Agency he felt the committee had shackled.

If advocates of looking back have their way, what are the options? Some past inquiries offer models, each with different potential winners and losers.

A CRIMINAL INVESTIGATION (IRAN-CONTRA)

Attorney General Eric H. Holder Jr. said at his confirmation hearing that he, like Mr. Obama, did not want to “criminalize policy differences” by punishing officials for acts they believed were legal. The same language was used in 1992 by President George H. W. Bush when he pardoned six officials charged in the Iran-contra investigation. Mr. Bush called the charges “a profoundly troubling development in the history of our country: the criminalization of policy differences.”

The Iran-contra case illustrates the obstacles to any prosecution that unfolds in a polarized political atmosphere. An independent prosecutor, Lawrence E. Walsh, worked for six years to untangle shady arms deals, defiance of Congress and a cover-up. But because of the pardons and court rulings, the key figures escaped all punishment except large legal fees and damaged reputations.

The sharpest critics of the Bush programs insist that only prosecution can restore the law to its proper place. They note that some 100 terrorism suspects have died in American custody and say a prosecution for conspiracy to torture could target both the high-level officials who approved the likes of waterboarding and lawyers who justified it.

But many legal experts believe that the Justice Department would be hard pressed to prosecute as torture methods that the department itself declared in 2002 not to be torture. And if an important goal is to determine who devised the policies, a push to prosecute might only persuade past officials to lawyer up and clam up.

A CONGRESSIONAL INVESTIGATION (CHURCH)

If there is a close precedent for the investigation now being debated, it is the inquiry led by Senator Church in 1975-76, which recorded in stunning detail some of the darkest chapters in American history. Its reports chronicled the C.I.A.’s bumbling attempts to assassinate foreign leaders; the N.S.A.’s watchlisting of civil rights and antiwar activists; and the F.B.I.’s campaign to drive the Rev. Dr. Martin Luther King Jr. to suicide.

The reports led directly to a series of reforms, including President Ford’s ban on assassinations, the creation of the Foreign Intelligence Surveillance Court to approve national-security eavesdropping and the establishment of Congressional oversight of the intelligence agencies.

But some Republicans saw Mr. Church as a showboat and his committee as overreaching. To Mr. Cheney, the Church legacy was a regrettable pruning of the president’s powers to protect the country — powers he and Bush administration lawyers reasserted after the Sept. 11, 2001, attacks.

A BLUE-RIBBON PANEL (9/11 COMMISSION)

Though Mr. Leahy praised the Church Committee, his own proposal would take the investigation away from Congress in favor of “a group of people universally recommended as fair minded.” He also suggested subpoena power and, perhaps most important, a South Africa-style trade-off: immunity for officials who testify truthfully.

Investigative commissions date at least to 1794, when George Washington used one to negotiate a settlement of the Whiskey Rebellion. The 9/11 commission, a recent example, largely overcame partisanship and drew generally positive reviews.

A commission would free Congress to focus on current problems, including the economic crisis. And promises of immunity might answer concerns expressed last month by the departing C.I.A. director, Michael V. Hayden — that any investigation would discourage intelligence officers from acting boldly for fear of later second-guessing.

DOING NOTHING

Or more accurately, finishing up and rolling out the inquiries already under way. Even if the push for a broad investigation loses momentum, the Bush programs will not soon be forgotten. Among major inquiries expected to conclude soon: a report from the Justice Department’s ethics office on legal opinions justifying harsh interrogations; the criminal investigation of the C.I.A.’s destruction of interrogation videotapes; and a report by the Justice Department inspector general on the N.S.A.’s warrantless eavesdropping.

Meanwhile, thousands of documents relating to secrets of the Bush years are being sought by journalists and advocates. Mr. Obama has directed agencies to lean strongly toward disclosure.

Frederick A. O. Schwarz Jr., who served as chief counsel for the Church Committee and has called for a new commission, said there is no telling what a thorough investigation may turn up. He recalled his shock as he sat in a secure room at the C.I.A. in 1975 and read that the agency had recruited the Mafia in a scheme to kill Fidel Castro.

“It may seem that we already know a lot,” Mr. Schwarz said. “But based on my experience, I’m certain there’s a lot that went on the last eight years that we still don’t know.”

On Friday in Salon, Joe Conason argued that there should be no criminal investigations of any kind for Bush officials “who authorized torture or other outrages in the ‘war on terror’.” Instead, Conason suggests that there be a presidential commission created that is “purely investigative,” and Obama should “promis[e] a complete pardon to anyone who testifies fully, honestly and publicly.” So, under this proposal, not only would we adopt an absolute bar against prosecuting war criminals and other Bush administration felons, we would go in the other direction and pardon them from any criminal liability of any kind.

I’ve already written volumes about why immunizing political officials from the consequences for their lawbreaking is both destructive and unjust — principally: the obvious incentives which such immunity creates (and, for decades, has been creating) for high-level executive branch officials to break the law and, even worse, the grotesque two-tiered system of justice we’ve implemented in this country (i.e., the creation of an incomparably harsh prison state for ordinary Americans who commit even low-level offenses as contrasted with what Conason calls, approvingly, “the institutional reluctance in Washington to punish political offenders”). Rather than repeat those arguments, I want to focus on an issue that pro-immunity advocates such as Conason simply never address.

The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994. When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compelall signatories — in language as clear as can be devised — to “submit the case to its competent authorities for the purpose of prosecution” (Art. 7(1)). And the treaty explicitly bars the standard excuses that America’s political class is currently offering for refusing to investigate and prosecute: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture” and “an order from a superior officer or a public authority may not be invoked as a justification of torture” (Art. 2 (2-3)). By definition, then, the far less compelling excuses cited by Conason (a criminal probe would undermine bipartisanship and distract us from more important matters) are plainly barred as grounds for evading the Convention’s obligations.

There is reasonable dispute about the scope of prosecutorial discretion permitted by the Convention, and there is also some lack of clarity about how many of these provisions were incorporated into domestic law when the Senate ratified the Convention with reservations. But what is absolutely clear beyond any doubt is that — just as is true for any advance promises by the Obama DOJ not to investigate or prosecute — issuing preemptive pardons to government torturers would be an unambiguous and blatant violation of our obligations under the Convention. There can’t be any doubt about that. It just goes without saying that if the U.S. issued pardons or other forms of immunity to accused torturers (as the Military Commissions Act purported to do), that would be a clear violation of our obligation to “submit the [torture] case to [our] competent authorities for the purpose of prosecution.” Those two acts — the granting of immunity and submission for prosecution — are opposites.

And yet those who advocate that we refrain from criminal investigations rarely even mention our obligations under the Convention. There isn’t even a pretense of an effort to reconcile what they’re advocating with the treaty obligations to which Ronald Reagan bound the U.S. in 1988. Do we now just explicitly consider ourselves immune from the treaties we signed? Does our political class now officially (rather than through its actions) consider treaties to be mere suggestions that we can violate at will without even pretending to have any justifications for doing so? Most of the time, our binding treaty obligations under the Convention — as valid and binding as every other treaty — don’t even make it into the discussion about criminal investigations of Bush officials, let alone impose any limits on what we believe we can do.

What was all the sturm und drang about in 2003 over Bush’s invasion of Iraq without U.N. approval, in violation of the U.N. charter? Wasn’t it supposed to be a bad thing for the U.S. to violate its own treaties? What happened to that? Conason himself was actually one of the clearest and most emphatic voices presciently highlighting the deceit on which the pro-war case was based, stridently warning of “ruined alliances and damaged institutions.” Why, then, is it acceptable now to ignore and violate our treaty obligations with regard to torture and other war crimes committed by high-level Bush officials? What’s the argument for simply pretending that these obligations under the Convention don’t exist?

* * * * *

On a related note, Conason, in the very first paragraph of Friday’s article, plainly misstated the results of a new Gallup poll on the question of whether Bush officials should be prosecuted and/or investigated. I have no doubt it was unintentional, but his error highlights a very important point about how this debate has proceeded. Here’s what Conason wrote in his first paragraph (emphasis added):

More than 60 percent of Americans believe that alleged abuses and atrocities ordered by the Bush administration should be investigated either by an independent commission or by federal prosecutors, according to a poll released yesterday by the Gallup Organization. A significant minority favors criminal sanctions against officials who authorized torture or other outrages in the “war on terror” — yet a considerably larger minority of nearly 40 percent prefers that the Obama administration leave its wayward predecessors be.

That last assertion (the one I bolded) is simply untrue. As Jim White notes here, the Gallup poll asked about three different acts of Bush lawbreaking: (1) politicization of DOJ prosecutions, (2) warrantless eavesdropping on Americans, and (3) torture. For each crime, it asked which of three options respondents favored: (1) a criminal investigation by the DOJ; (2) a non-criminal, fact-finding investigation by an independent panel; or (3) neither. The full results are here.

For all three separate acts of alleged crimes, the option that receives the most support from Americans is criminal investigations (i.e., the exact opposite of what Conason wrote). And the percentage that favor that nothing be done is in every case less than the percentage that want criminal investigations, and the “do-nothing” percentage never reaches 40% or close to it (the highest it gets is 34% — roughly the same minority of pro-Bush dead-enders that continue to support most of what was done).

As White notes, the breakdowns are even more revealing. For all three areas of lawbreaking, majorities of Democrats (which, by the way, is now the majority party) favor criminal investigations. For each of the three areas, more independents favor criminal prosecutions than favor doing nothing, and large majorities of independents — ranging from 59% to 71% — want either a criminal investigation or an independent fact-finding investigation. A Washington Postpoll from a couple weeks ago found very similar results: majorities of Americans (and large majorities of Democrats) favor investigations into whether Bush officials broke the law and, by a wide margin, oppose the issuance of pardons to Bush officials.

Imagine what those numbers would be in a world where virtually every establishment political pundit — literally: whether Democratic or Republican, liberal or conservative — weren’t uniting together to oppose prosecutions for torture and war crimes. Even with that unified anti-prosecution stance from a trans-partisan rainbow of Beltway opinion-makers, criminal investigations remain the leading position amongAmericans generally and among majorities of Democrats specifically. Those are just facts.

As is always the case, the mere fact that majorities of Americans believe X does not mean that X is right or true. But pundits, journalists and politicians should stop claiming that they’re speaking for most Americans when they argue that we should just “move on” — or that the belief in investigations is the province of the leftist fringe — because that claim is demonstrably false.

Apparently, huge numbers of Americans — majorities, actually — are now liberal, vengeance-seeking, score-settlers from the Hard Left. What we actually have is what one finds again and again: establishment journalists who will resort to outright distortions about American public opinion in order to render it irrelevant, by claiming that “most Americans” believe as they believe even where, as here, that claim is categorically false. It’s hardly surprising (except to an insular Beltway maven) that Americans, who know that they will be subjected to one of the world’s harshest and most merciless criminal justice systems if they break the law, don’t want political elites exempted from the rule of law. Imagine that.

* * * * *

Finally, Newsweek‘s Michael Isikoff — echoing a report from John Yoo’s Berkeley colleague, Brad DeLong — reports that an internal DOJ probe (initiated during the Bush administration) has preliminarily concluded that Bush DOJ lawyers who authorized torture (John Yoo, Jay Bybee, Stephen Bradbury) violated their professional duties as lawyers by issuing legal conclusions that had no good faith basis, and that this behavior will be referred to their state bar associations for possible disciplinary action. Those conclusions so infuriated the allegedly honorable Michael Mukasey that he refused to accept the report until changes were made. Now it is up to Eric Holder to accept and then release that report.

The implications of this event can’t be overstated. One of the primary excuses offered by Bush apologists and those who oppose investigations is that Bush DOJ lawyers authorized the torture and opined that it was legal. But a finding that those lawyers breached their ethical obligations would mean, by definition, that the opinions they issued were not legitimate legal opinions — i.e., that they were not merely wrong in their conclusions, but so blatantly and self-evidently wrong that they were issued in bad faith (with the intent to justify what they knew the President wanted to do, rather than to offer their good faith views of what the law permitted).

The Convention Against Torture explicitly prohibits the domestic legalization of torture, and specifically states that it shall not be a defense that government officials authorized it. So whether or not these legal opinions were issued in good faith is irrelevant to our obligations under that treaty to investigate and prosecute. But a finding that these legal opinions were issued in bad faith — with the deliberate intent to knowingly legalize what was plainly criminal behavior — will gut the primary political excuse for treating Bush officials differently than common criminals.

UPDATE: Citing numerous leading international law authorities, Valtin has an excellent discussion of the obligations the U.S. has to criminally investigate Bush crimes, not only under the Convention Against Torture but also under the Geneva Conventions. If we don’t consider ourselves bound by the treaties we sign, we should just say so and abrogate them. Those demanding criminal immunity for Bush officials are advocating that we can and should violate our treaty obligations; they really ought to be honest about it.

UPDATE II: On June 28, 2004, George Bush commemorated the U.N. Day to Support Torture Victims and vowed that the U.S. “will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction.” In doing so, he specifically cited the U.S.’s bindingobligation under the Convention to do so (h/t leftydem):

To help fulfill this commitment, the United States has joined 135 other nations in ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction. American personnel are required to comply with all U.S. laws, including the United States Constitution, Federal statutes, including statutes prohibiting torture, and our treaty obligations with respect to the treatment of all detainees. . . .

The United States also remains steadfastly committed to upholding the Geneva Conventions, which have been the bedrock of protection in armed conflict for more than 50 years. . . . [W]e will not compromise the rule of law or the values and principles that make us strong. Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere.

If George Bush, citing our obligations under the Convention Against Torture and the Geneva Conventions, can publicly vow that “we will investigate and prosecute all acts of torture,” why can’t Democratic politicians and liberal pundits simply cite the same treaty obligations and make the same commitment?

Army Private Brandon Neely served as a prison guard at Guantánamo in the first years the facility was in operation. With the Bush Administration, and thus the threat of retaliation against him, now gone, Neely decided to step forward and tell his story. “The stuff I did and the stuff I saw was just wrong,” he told the Associated Press. Neely describes the arrival of detainees in full sensory-deprivation garb, he details their sexual abuse by medical personnel, torture by other medical personnel, brutal beatings out of frustration, fear, and retribution, the first hunger strike and its causes, torturous shackling, positional torture, interference with religious practices and beliefs, verbal abuse, restriction of recreation, the behavior of mentally ill detainees, an isolation regime that was put in place for child-detainees, and his conversations with prisoners David Hicks and Rhuhel Ahmed. It makes for fascinating reading.

Neely’s comprehensive account runs to roughly 15,000 words. It was compiled by law students at the University of California at Davis and can be accessed here. Three things struck me in reading through the account.

First, Neely and other guards had been trained to the U.S. military’s traditional application of the Geneva Convention rules. They were put under great pressure to get rough with the prisoners and to violate the standards they learned. This placed the prison guards under unjustifiable mental stress and anxiety, and, as any person familiar with the vast psychological literature in the area (think of the Stanford Prison Experiment, for instance) would have anticipated produced abuses. Neely discusses at some length the notion of IRF (initial reaction force), a technique devised to brutalize or physically beat a detainee under the pretense that he required being physically subdued. The IRF approach was devised to use a perceived legal loophole in the prohibition on torture. Neely’s testimony makes clear that IRF was understood by everyone, including the prison guards who applied it, as a subterfuge for beating and mistreating prisoners—and that it had nothing to do with the need to preserve discipline and order in the prison.

Second, there is a good deal of discussion of displays of contempt for Islam by the camp authorities, and also specific documentation of mistreatment of the Qu’ran. Remember that the Neocon-laden Pentagon Public Affairs office launched a war against Newsweek based on a very brief piece that appeared in the magazine’s Periscope section concerning the mistreatment of a Qu’ran by a prison guard. Not only was the Newsweek report accurate in its essence, it actually understated the gravity and scope of the problem. Moreover, it is clear that the Pentagon Public Affairs office was fully aware, even as it went on the attack against Newsweek, that its claims were false and the weekly’s reporting was accurate.

Third, the Nelly account shows that health professionals are right in the thick of the torture and abuse of the prisoners—suggesting a systematic collapse of professional ethics driven by the Pentagon itself. He describes body searches undertaken for no legitimate security purpose, simply to sexually invade and humiliate the prisoners. This was a standardized Bush Administration tactic–the importance of which became apparent to me when I participated in some Capitol Hill negotiations with White House representatives relating to legislation creating criminal law accountability for contractors. The Bush White House vehemently objected to provisions of the law dealing with rape by instrumentality. When House negotiators pressed to know why, they were met first with silence and then an embarrassed acknowledgement that a key part of the Bush program included invasion of the bodies of prisoners in a way that might be deemed rape by instrumentality under existing federal and state criminal statutes. While these techniques have long been known, the role of health care professionals in implementing them is shocking.

Neely’s account demonstrates once more how much the Bush team kept secret and how little we still know about their comprehensive program of official cruelty and torture.

Last Sunday President-elect Barack Obama was asked whether he would seek an investigation of possible crimes by the Bush administration. “I don’t believe that anybody is above the law,” he responded, but “we need to look forward as opposed to looking backwards.”

I’m sorry, but if we don’t have an inquest into what happened during the Bush years — and nearly everyone has taken Mr. Obama’s remarks to mean that we won’t — this means that those who hold power are indeed above the law because they don’t face any consequences if they abuse their power.

Let’s be clear what we’re talking about here. It’s not just torture and illegal wiretapping, whose perpetrators claim, however implausibly, that they were patriots acting to defend the nation’s security. The fact is that the Bush administration’s abuses extended from environmental policy to voting rights. And most of the abuses involved using the power of government to reward political friends and punish political enemies.

At the Justice Department, for example, political appointees illegally reserved nonpolitical positions for “right-thinking Americans” — their term, not mine — and there’s strong evidence that officials used their positions both to undermine the protection of minority voting rights and to persecute Democratic politicians.

The hiring process at Justice echoed the hiring process during the occupation of Iraq — an occupation whose success was supposedly essential to national security — in which applicants were judged by their politics, their personal loyalty to President Bush and, according to some reports, by their views on Roe v. Wade, rather than by their ability to do the job.

Speaking of Iraq, let’s also not forget that country’s failed reconstruction: the Bush administration handed billions of dollars in no-bid contracts to politically connected companies, companies that then failed to deliver. And why should they have bothered to do their jobs? Any government official who tried to enforce accountability on, say, Halliburton quickly found his or her career derailed.

There’s much, much more. By my count, at least six important government agencies experienced major scandals over the past eight years — in most cases, scandals that were never properly investigated. And then there was the biggest scandal of all: Does anyone seriously doubt that the Bush administration deliberately misled the nation into invading Iraq?

Why, then, shouldn’t we have an official inquiry into abuses during the Bush years?

One answer you hear is that pursuing the truth would be divisive, that it would exacerbate partisanship. But if partisanship is so terrible, shouldn’t there be some penalty for the Bush administration’s politicization of every aspect of government?

Alternatively, we’re told that we don’t have to dwell on past abuses, because we won’t repeat them. But no important figure in the Bush administration, or among that administration’s political allies, has expressed remorse for breaking the law. What makes anyone think that they or their political heirs won’t do it all over again, given the chance?

In fact, we’ve already seen this movie. During the Reagan years, the Iran-contra conspirators violated the Constitution in the name of national security. But the first President Bush pardoned the major malefactors, and when the White House finally changed hands the political and media establishment gave Bill Clinton the same advice it’s giving Mr. Obama: let sleeping scandals lie. Sure enough, the second Bush administration picked up right where the Iran-contra conspirators left off — which isn’t too surprising when you bear in mind that Mr. Bush actually hired some of those conspirators.

Now, it’s true that a serious investigation of Bush-era abuses would make Washington an uncomfortable place, both for those who abused power and those who acted as their enablers or apologists. And these people have a lot of friends. But the price of protecting their comfort would be high: If we whitewash the abuses of the past eight years, we’ll guarantee that they will happen again.

Meanwhile, about Mr. Obama: while it’s probably in his short-term political interests to forgive and forget, next week he’s going to swear to “preserve, protect, and defend the Constitution of the United States.” That’s not a conditional oath to be honored only when it’s convenient.

And to protect and defend the Constitution, a president must do more than obey the Constitution himself; he must hold those who violate the Constitution accountable. So Mr. Obama should reconsider his apparent decision to let the previous administration get away with crime. Consequences aside, that’s not a decision he has the right to make.

New York Times foreign affairs columnist Thomas Friedman endorsed terrorism in a January 14 column defending Israel’s attacks on the Gaza Strip.

To answer his own question about Israel’s plan–“What is the goal?”–Friedman referred back to the 2006 attacks on Lebanon, which killed about 1,000 Lebanese civilians. To Friedman, this was the “education” of the Lebanese militant group Hezbollah:

Israel’s counterstrategy was to use its air force to pummel Hezbollah and, while not directly targeting the Lebanese civilians with whom Hezbollah was intertwined, to inflict substantial property damage and collateral casualties on Lebanon at large. It was not pretty, but it was logical. Israel basically said that when dealing with a nonstate actor, Hezbollah, nested among civilians, the only long-term source of deterrence was to exact enough pain on the civilians–the families and employers of the militants–to restrain Hezbollah in the future.

The “logical” plan, as Friedman explained it, is to punish civilians in the hopes that this will force the political change you prefer. This is precisely the “logic” of terrorists.

According to Friedman, this “education” worked on Hezbollah, and he hopes it will work in the current conflict: “In Gaza, I still can’t tell if Israel is trying to eradicate Hamas or trying to ‘educate’ Hamas, by inflicting a heavy death toll on Hamas militants and heavy pain on the Gaza population.” Friedman’s preference is for the terrorism “education.”

This pro-terrorism argument has been made before by Friedman, who advocated the same sort of terror against Serbs, writing (4/6/99) that “people tend to change their minds and adjust their goals as they see the price they are paying mount. Twelve days of surgical bombing was never going to turn Serbia around. Let’s see what 12 weeks of less than surgical bombing does. Give war a chance.”

The New York Times has developed certain rules and guidelines for its opinion columnists over the years–they are not permitted to endorse political candidates, and they are generally expected to refrain from criticizing one another by name in print. Other policies have been made clear in the past–as when liberal columnist Paul Krugman was instructed not to refer to George W. Bush as “lying” during the 2000 campaign (Washington Post, 1/22/03).

Does the Times have a similar standard for columnists who endorse inflicting suffering on civilians? Or does the acceptability of advocating terrorism depend on who is being terrorized?

ACTION: Ask the Times if Thomas Friedman’s column advocating terrorism against civilians in Gaza meets the paper’s standards for its opinion columns.

Tom Friedman offers a perfect definition of “terrorism”

Tom Friedman, one of the nation’s leading propagandists for the Iraq War and a vigorous supporter of all of Israel’s wars, has a column today in The New York Times explaining and praising the Israeli attack on Gaza. For the sake of robust and diverse debate (for which our Liberal Media is so well known), Friedman’s column today appears alongside an Op-Ed from The Atlantic‘s Jeffrey Goldberg, one of the nation’s leading (and most deceitful) propagandists for the Iraq War and a vigorous supporter of all of Israel’s wars, who explains that Hamas is incorrigibly hateful and radical and cannot be negotiated with. One can hardly imagine a more compelling exhibit demonstrating the complete lack of accountability in the “journalism” profession — at least for those who are loyal establishment spokespeople who reflexively cheer on wars — than a leading Op-Ed page presenting these twowar advocates, of all people, as experts, of all things, on the joys and glories of the latest Middle East war.

In any event, Friedman’s column today is uncharacteristically and refreshingly honest. He explains that the 2006 Israeli invasion and bombing of Lebanon was, contrary to conventional wisdom, a great success. To make this case, Friedman acknowledges that the deaths of innocent Lebanese civilians was not an unfortunate and undesirable by-product of that war, but rather, was a vital aspect of the Israeli strategy — the centerpiece, actually, of teaching Lebanese civilians a lesson they would not soon forget:

Israel’s counterstrategy was to use its Air Force to pummel Hezbollah and, while not directly targeting the Lebanese civilians with whom Hezbollah was intertwined, to inflict substantial property damage and collateral casualties on Lebanon at large. It was not pretty, but it was logical. Israel basically said that when dealing with a nonstate actor, Hezbollah, nested among civilians, the only long-term source of deterrence was to exact enough pain on the civilians — the families and employers of the militants — to restrain Hezbollah in the future.

Israel’s military was not focused on the morning after the war in Lebanon — when Hezbollah declared victory and the Israeli press declared defeat. It was focused on the morning after the morning after, when all the real business happens in the Middle East. That’s when Lebanese civilians, in anguish, said to Hezbollah: “What were you thinking? Look what destruction you have visited on your own community! For what? For whom?”

Friedman says that he is “unsure” whether the current Israeli attack on Gaza is similiarly designed to teach Palestinians the same lesson by inflicting “heavy pain” on civilians, but he hopes it is:

In Gaza, I still can’t tell if Israel is trying to eradicate Hamas or trying to “educate” Hamas, by inflicting a heavy death toll on Hamas militants andheavy pain on the Gaza population. If it is out to destroy Hamas, casualties will be horrific and the aftermath could be Somalia-like chaos. If it is out to educate Hamas, Israel may have achieved its aims.

No one definition of terrorism has gained universal acceptance. For the purposes of this report, however, we have chosen the definition of terrorism contained in Title 22 of the United States Code, Section 2656f(d). That statute contains the following definitions:

(1) For purposes of this definition, the term “noncombatant” is interpreted to include, in addition to civilians, military personnel who at the time of the incident are unarmed and/or not on duty.

Other than the fact that Friedman is advocating these actions for an actual state rather than a “subnational group,” can anyone identify any differences between (a) what Friedman approvingly claims was done to the Lebanese and what he advocates be done to Palestinians and (b) what the State Department formally defines as “terrorism”? I doubt anyone can. Isn’t Friedman’s “logic” exactly the rationale used by Al Qaeda: we’re going to inflict “civilian pain” on Americans so that they stop supporting their government’s domination of our land and so their government thinks twice about bombing more Muslim countries? It’s also exactly the same “logic” that fuels the rockets from Hezbollah and Hamas into Israel.

It should be emphasized that the mere fact that Tom Friedman claims that this is Israel’s motivation isn’t proof that it is. The sociopathic lust of a single war cheerleader can’t fairly be projected onto those who are actually prosecuting the war. But one can’t help noticing that this “teach-them-a-lesson” justification for civilian deaths in Gaza appears with some frequency among its advocates, at least among a certain strain of super-warrior, Israel-centric Americans –e.g.: Marty “do not fuck with the Jews” Peretz and Michael “to wipe out a man’s entire family, it’s hard to imagine that doesn’t give his colleagues at least a moment’s pause” Goldfarb — who love to cheer on Middle East wars from a safe and sheltered distance.

This war on the people of Gaza isn’t really about rockets. Nor is it about “restoring Israel’s deterrence,” as the Israeli press might have you believe. Far more revealing are the words of Moshe Yaalon, then the Israeli Defense Forces chief of staff, in 2002: “The Palestinians must be made to understand in the deepest recesses of their consciousness that they are a defeated people.”

This AP article yesterday described how “terrified residents ran for cover Tuesday in a densely populated neighborhood of Gaza City as Israeli troops backed by tanks thrust deeper into the city.” It reported that “an Israeli warplane fired a missile at the former Gaza city hall, used as a court building in recent years . . . . The 1910 structure was destroyed and many stores in the market around it were badly damaged.” And it quoted an Israeli military officer as follows: “Soldiers shoot at anything suspicious, use lots of firepower, and blast holes through walls to move around.”

The efficacy of Friedman’s desired strategy of inflicting pain on Palestinian civilians in order to change their thinking and behavior is unclear. The lack of clarity is due principally to the fact that Israel is still blocking journalists from entering Gaza. But this Sunday’s New York Times article — reporting on unconfirmed claims that Israel was using white phosphorus on the civilian population (a claim the IDF expressly refused to deny) — contains this anecdotal evidence that The Friedman Strategy is actually quite counter-productive:

Still, white phosphorus can cause injury, and a growing number of Gazans report being hurt by it, including in Beit Lahiya, Khan Yunis, and in eastern and southwestern Gaza City. When exposed to air, it ignites, experts say, and if packed into an artillery shell, it can rain down flaming chemicals that cling to anything they touch.

Luay Suboh, 10, from Beit Lahiya, lost his eyesight and some skin on his face Saturday when, his mother said, a fiery substance clung to him as he darted home from a shelter where his family was staying to pick up clothes.

The substance smelled like burned trash, said Ms. Jaawanah, the mother who fled her home in Zeitoun, who had experienced it too. She had no affection for Hamas, but her sufferings were changing that. “Do you think I’m against them firing rockets now?” she asked, referring to Hamas. “No. I was against it before. Not anymore.”

It’s far easier to imagine a population subjected to this treatment becoming increasingly radicalized and belligerent rather than submissive and compliant, as Friedman intends. But while the efficacy of The Friedman Strategy is unclear, the fact that it is a perfect distillation of a “war crime” and “terrorism” is not unclear at all.

UPDATE: In comments, casual_observer — with ample citations — objects to my characterization of white phosphorus reports in Gaza as “unconfirmed,” and argues that while the substance does have permissible and legitimate uses under the laws of war, this particular usage in urban areas can be used to sow terror in the civilian population — i.e., is an ideal instrument for advancing The Friedman Strategy.

UPDATE II: In response to multiple comments protesting that Israel does not seek to kill civilians, permit me to make clear, again, that the criticism here is directed towards Tom Friedman’s claims about what Israel’s motives are and should be in bombing and invading Lebanon and Gaza. I’m not assuming that those are actually Israel’s motives and stressed that point as clearly as the English language permits:

It should be emphasized that the mere fact that Tom Friedman claims that this is Israel’s motivation isn’t proof that it is. The sociopathic lust of a single war cheerleader can’t fairly be projected onto those who are actually prosecuting the war.

The other point worth noting is that for an American citizen to criticize Israel’s wars without criticizing every similar or worse act of aggression is not to “hold Israel to a higher or different standard.” The U.S. Government funds Israel’s actions, specifically provides the arms for their various bombing campaigns and invasions, and continuously uses its U.N. veto power to protect what Israel does. American citizens therefore bear a responsibility for Israel’s actions that is not the case for actions which the U.S. Government does not fund and otherwise enable.

This objection (“why are you complaining about Israel but not the rebels in Sri Lanka?”) rests on the same fallacy as the accusation that American citizens are being “anti-American” when they criticize the actions of their own government more than the actions of other governments (“Why are you complaining that Bush waterboards when North Korea starves its citizens to death and Iran stones gay people?”). Citizens bear a particular responsibility to object to unjust actions which their own Government engages in or enables. It shouldn’t be the case — but it is — that Americans fund, arm and enable Israel’s wars. Those are American weapons which, at least in part, are being used to destroy Gaza, and Americans therefore bear a special responsibility for condemning Israel’s unjust actions to a far greater extent than the actions of any other country except for the U.S.

One final note: the fact that all sorts of prior wars, including ones waged by Western powers, contain events that could comfortably fit the definition of “terrorism” isn’t a refutation of the point I’m making. If anything, it bolsters the point. “Terrorism” is probably the single most elastic and easily manipulated term in our political lexicon. Who the perpetrators and victims are of “terrorism” is almost always a function of who is wielding the term rather than some objective assessment. Aimlessly shooting rockets towards civilians (as Hamas and Hezbollah do) and dropping bombs from 35,000 feet that you know will slaughter many civilians while viewing that slaughter as a strategic benefit (as Friedman advocates) are acts that have far more in common with each other than differences.

Nine Israeli human rights groups called on Wednesday for an investigation into whether Israeli officials had committed war crimes in Gaza since tens of thousands of civilians there have nowhere to flee, the health system has collapsed, many are without electricity and running water, and some are beyond the reach of rescue teams. . . .

The group included the Israel section of Amnesty International, B’Tselem, Gisha and Physicians for Human Rights — Israel.

It really ought to be too obvious to require pointing out: to oppose the Israeli war in Gaza and to be horrified by what they are doing to Palestinian civilians no more makes someone “anti-Israel” or “pro-Hamas” than opposing and condemning the Iraq War and being horrified by what we did to that country makes someone “anti-American” or “pro-Saddam.”

On a different note, another new poll — this one from Pew — shows Americans, and especially Democrats, deeply divided on what U.S. policy towards Israel should be in this case. While a plurality of Americans sympathize more with Israel than the Palestinians and blame Hamas more than Israel for the outbreak of violence, Democrats overwhelmingly disapprove of the Israeli action in Gaza (29-45%), and a majority of Democratsbelieve either (a) “the U.S. should say or do nothing” (40%) or (b) “the U.S. should criticize Israel” (12%). Only 34% of Democrats believe that the U.S. “should publicly support Israel” (34%). Despite that, their representatives in Congressvoted almost unanimously to adopt a one-sided Resolution publicly declaring America’s support for Israel’s attack on Gaza.

Meanwhile, Fairness and Accuracy in Reporting — in an item entitled “Terrorism on the New York Times Op-Ed Page” — examines Friedman’s history of making similar statements, and raises this question: is it even possible to imagine an Op-Ed or column being published by a major newspaper that enthusiastically trumpeted all of the great strategic benefits that would accrue to Muslims from the violent deaths of large numbers of Israeli civilians, the way Friedman today did with regard to the deaths of Palestinian and Lebanese civilians?